The Department of Justice (“DOJ”) has released proposed modifications to the regulations concerning the labeling and record-keeping law, 18 U.S.C. §2257, making clear that inspections and enforcement actions are imminent.
When a statute authorizes a commission or department to promulgate regulations – and they materially all have regulatory authority in many areas – the procedure is that proposed regulations are published in the Federal Register, specifying a period for public comment. After the public-comment period expires, usually a few months, the commission or department supposedly reviews and considers all of the comments, modifies the proposed regulation to the extent that merit is found in any public comment, and publishes the final regulation in the Federal Register. Much like acts of Congress are codified in the United States Code, federal regulations are codified in the Code of Federal Regulations (“CFR”).
The labeling and record-keeping requirements of 18 U.S.C. 2257 include so-called “rule-making authority,” allowing the Department of Justice to promulgate regulations – which it did in 1992, and the regulations are found in Title 28 CFR, sections 75.1 to 75.8. That was a good many years ago, however, long before the Internet.
Recall that the “Amber Alert Law,” also known as the PROTECT Act, included a provision instructing the Department of Justice (“DOJ”) to report on the inspections it was conducting under 18 U.S.C. §2257, the labeling and record-keeping law (“2257”). It turns out that, just before Congress’ deadline, General Ashcroft trundled up Capitol Hill with the required report in hand. The report said what everyone knows, which is that the DOJ has been doing materially no inspecting. But in a face-saving move, Ashcroft brought with him a battery of new 2257 regulations, dramatically modifying the original ones. Ashcroft especially noted that the regulations needed updating to deal with the Internet, implying that the lack of inspections was due to the out-of-date nature of the regulations.
In reviewing the modified regulations, keep in mind that they were not the work of a commission, which would have built-in safeguards against being monopolized by any one political party. Rather, they were drafted by the DOJ, headed by the Bible-driven John Ashcroft, who was appointed by President Bush. So do not expect them to be at all user-friendly.
Also, note that the scope of this article is limited to Websites that distribute content, and not the production of content. There are one set of requirements for those who only distribute materials, and another set – considerably more daunting – for those who actually do production. For the latter, see the September issue of AVN Online, which will address 18 U.S.C. §2257 in depth.
The regulatory changes begin with what appears to embrace the United States Court of Appeals decision in Sundance Assocs. Inc. v. Reno, 139 F.3d 804, 807 (10th Cir.1998). That case invalidated the component of the original regulations that required some “secondary producers” maintain copies of records, allow inspections, and so on. The new regulations include an exception that appears to conform to the Sundance case, which held that the original regulations contradicted the statute by requiring record-keeping by categories of businesses that were clearly exempted by the statute: “production” that requires record-keeping “does not include mere distribution or any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted.” But then “secondary producers” are an exception to the exception, which seems to entirely fly in the face of Sundance. Also now specifically exempt from record-keeping under the new regulations are ISPs.
If you simply are re-distributing content covered by 2257 (which means anyone in the image, at the time it was made, is touching anyone’s genitals, including their own, with anything, whether you can see it or not, or any S&M activity), then you are only required to include, as directed by the regulations, a “statement describing where the records required by this section [2257] may be located, but such person shall have no duty to determined the accuracy of the contents of the statement or the records required to be kept.” Your only duty, then, is to obtain the information required to be included in the statement and display it. And, to date, the place and manner of displaying the statement has been subject to debate, because the Internet had not been invented when the current regulations were written. (Remember, the new regulations are not effective until finalized after public comment!) The best anyone had to go on was a vague, catch-all provision.
As proposed, however, there may be considerable problems with the regulations, although they are specific:
“A computer site or service or Web address containing a computer-generated image, digital image, or picture, shall contain the required statement on its homepage or principal URL.”
Sounds simple enough: Put the label on the homepage, right? For those of you having sites with content from 100 different sources, your hair is probably now standing on end, at least if you are conscious of the fact that the statement must identify which images have their records at what locations. Presumably one solution would be to obtain all of the records yourself and be the custodian, but that subjects you to indexing, a separate place for records – and worst of all, inspections! Presumably a repair that would allow a conspicuous link on the home page would be more palatable to you. For those multiple-source sites, the only solution under the current regulations is to place the 2257 information as the bottom item on the home page; so if it goes on for paragraph after paragraph, it will not interfere with your marketing.
Nothing changed about the content of the statement: (1) an identifying title or number of the picture; (2) the “date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter”; (3) the street address where the records are located; (4) the name of the custodian if the producer is a company, rather than an individual. Parenthetically, it would seem that on a Web site, the date of “publication” would be today, so a statement “date of publication” followed by a computer-generated today’s-date would suffice. Moreover, there is a serious question as to whether the DOJ is authorized by the statute to require that any date be included.
Now, here’s the kicker – especially for Webmasters:
“For the purposes of this section, the required statement shall be displayed in the same typeface as the names of the performers, director, producer, or owner, whichever is larger, and in any case in less than 11 pt type, in black on a white, untinted background. For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being ready by the average viewer.”
The catch here is the requirement of 11-point type. How can you do that on the Internet? Eleven-point type must be 11/72-inch tall. But on what size screen? And with what screen setup? Also, the requirement of a white background may require substantial redesign of all home pages created in certain themes and backgrounds. A conspicuous legal disclosure will certainly affect the flow and creativity going into many home pages. Hopefully these issues will be refined with respect to Web sites after public comment.
One other, significant aspect of the proposed, amended regulations is that they do not recognize the July 3, 1995 effective date to which the DOJ agreed. Nothing is changed in the regulations with respect to the 1990/1992 effective time period, which may create some problem with content that was produced between 1990 and 1995. That, also, will be the subject of public comments.
You need to keep on top of developments here, because things will transpire – including possibly significant changes in the regulations – in a matter of months.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
